TRIAL CHAMBER II (“Trial Chamber”) of the
International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 (“Tribunal”):

BEING SEISED of the “Defence Motion on Behalf
of Lahi Brahimaj for Provisional Release” (“Motion”),
filed confidentially by counsel for Lahi Brahimaj
(“Defence
” and “Accused”, respectively) on 16 September 2005,
as well as a further submission thereto (“Addendum”),
filed on 10 October 2005, in which the Defence requests
that the Accused be provisionally released to Kosovo
pursuant to Rule 65 of the Tribunal’s
Rules of Procedure and Evidence (“Rules”), and on
terms and conditions analogous to those imposed on
co-accused Ramush Haradinaj;1

NOTING the letter of 11 October 2005 by the
Special Representative of the Secretary-General
and head of the United Nations Interim Administration
Mission in Kosovo (“UNMIK”), addressed to the Registrar
of the Tribunal and referring to the Motion;

NOTING the “Request by the Defence for Lahi
Brahimaj for Leave to Reply to the Prosecution’s
Response to ‘Defence Motion on Behalf of Lahi Brahimaj
for Provisional Release’, filed on 17 October 2005
and for Authorisation to Exceed the Page-Limit for
the Reply”, filed
by the Defence on 25 October 2005;

NOTING the “Defence Reply” (“Reply”), filed
confidentially by the Defence on 25 October 2005,
in which the Defence opposes the arguments put forward
by the Prosecution in the Response;

NOTING the following Defence arguments in
support of the Motion:

(A) Arguments supporting that the Accused will
appear for trial:

(1) The circumstances of the Accused’s voluntary
surrender provide indication as to how he would
conduct himself, if granted provisional release,2

(2) UNMIK undoubtedly possesses the ability to
monitor and report on compliance with the terms
of provisional release, as it is now demonstrated
in the case of co-accused Ramush Haradinaj, who
is currently on provisional release in Kosovo,3

(3) The Accused demonstrated an exemplary degree
of co-operation with the Prosecution ever since
he became aware that investigations were being
pursued against him,4

(4) Although the Accused, if convicted, may face
lengthy incarceration, this factor cannot in itself
justify long periods of pre-trial detention,5

(5) The Accused provided the Trial Chamber with
an undertaking to fully comply with all orders,
terms and conditions imposed by the Tribunal in
connection with his provisional release,6 as well as with
two references attesting to his personal and professional
integrity;7

(B) Arguments supporting that the Accused, if released,
will not pose a danger to any victim, witness
or other person:

(1) Since his first becoming aware of the Prosecution’s
investigations against him, some months prior
to his indictment, the Accused has not taken any
measures to interfere with anyone, including any
person who might be called to testify against him,8

(2) The contention of a potential witness,
identified as SST7/30, that a person called ‘Lahi’ threatened
him some time prior to April 2004, is denied,
assuming that this allegation is made against the
Accused,9

(3) The Prosecution cannot argue in rebuttal that
the mere possibility of the Accused to interfere
with the administration of justice are sufficient
grounds to establish that such interference will
in fact occur,10

(4) The fact that the Accused is the uncle of co-accused
Ramush Haradinaj would only provide an additional
safeguard for the former to refrain from taking
any action, such as violating an order issued
by the Tribunal, capable of causing damage to
the reputation of their family;11

NOTING the following Prosecution arguments
in support of the Response:

(A) There is a risk that, if released, the Accused
might not appear for trial:

(1) The circumstances of the Accused’s voluntary
surrender cannot serve as a guarantee that he
will not escape, once released, considering that
in the meantime, material has been disclosed to
him pursuant to Rule 66(A)(i) of the Rules, which
may have led to a change in his perception of the
case,12

(2) The ability of UNMIK to monitor and enforce
the conditions of provisional release imposed
by the Trial Chamber on the Accused is limited;
moreover, UNMIK’s mandate
and presence in Kosovo may be subject to substantial
changes in the foreseeable future,13

(3) The co-operation of the Accused with the Prosecution
can only be described as minimal, considering
that the Accused exercised his right to remain
silent when questioned about activities of the
Kosovo Liberation Army during an interview in December
2004,14

(4) The less the time spent in pre-trial detention
correlates to the sentence likely to be imposed
on an accused, the more likely it remains that
an accused would seek to flee,15

(5) The undertaking of the Accused, and the two
reference statements attesting to his personal
and professional integrity should not be given
much weight, considering that the statements were
issued by individuals whose judgement cannot be
considered to be neutral since they are familiar
and associated with the Accused;16

(B) There is a risk that, if released, the Accused
may pose a danger for victims and witnesses:

(1) Although the Prosecution acknowledges certain
positive developments, the situation for potential
witnesses in Kosovo still remains extremely dangerous,17

(2) Two potential witnesses, SST7/30 and another
unidentified individual, reported that they were
threatened or unduly put under pressure by the
Accused;18
at the same time, UNMIK refuses to lift confidentiality
measures on the investigation files relative to
these incidents due to security concerns for the
individuals in question;19

(1) There is a risk of collusion between the Accused
and his nephew, Ramush Haradinaj, should the Accused
be released to the same location as his co-accused,20

(2) The Accused hasn’t offered any specification
regarding the studies he intends to pursue at the
University of Pristina/Prishtinë, nor does the
Accused explain how he would earn a livelihood;21

NOTING that the Defence, in its Reply, opposes
the validity of the arguments advanced in the Prosecution’s
Response, in particular, it is submitted that substantial
weight should be given to the two reference statements;22 moreover, that allegations
of threats by the Accused against one potential
witness – an incident which is denied – relate to
a period before the Accused was indicted by this
Tribunal, and that the allegations made by the second
potential witness, even if believed, are basically
unsubstantiated;23
finally, that the Accused would rely on family and
friends to assist him with accommodation and sustenance
while pursuing his studies24;

CONSIDERING that, according to Rule 65(B)
of the Rules, in determining whether to grant provisional
release to an accused, it is for the accused to satisfy
the Trial Chamber of two matters: (i) that he will
appear for trial, and (ii) that, if released, he
will not pose a danger to any victim, witness or
other person, and that the Trial Chamber may exercise
discretion, with due consideration to the particular
circumstances of the present case, in deciding whether
provisional release should be granted;25

CONSIDERING that the burden of proof rests
upon an accused to satisfy the Trial Chamber that,
if released, he will appear for trial and will not
pose any danger to victims, witnesses or other persons;26

CONSIDERING all circumstances of the Accused’s
surrender to the Tribunal;

CONSIDERING the guarantees provided by UNMIK
in its letter of 11 October 2005;

CONSIDERING the vagueness of the Accused’s
plans, if granted provisional release, and the uncertainty
about his ability to earn a livelihood;

CONSIDERING that it cannot be said that the
Accused co-operated fully and in a meaningful way
with the Prosecution during a voluntary interview
in December 2004, as far as he remained silent to
questions touching upon areas outside his own criminal
responsibility;

CONSIDERING that so far, the period of time
spent by the Accused in pre-trial detention can
in no way be described as excessive;

CONSIDERING the two reference statements given
by a Lieutenant General in the Kosovo Protection
Corps and by the current Prime Minister of Kosovo,
who describe the Accused as a man of integrity with
respect for the rule of law;

FINDING that, viewing these arguments in context
and balancing them against each other, and in the
absence of any other significant factor indicating
that he will return for trial, if released, the
Accused has not discharged his burden of proof to
satisfy the Trial Chamber that the first requirement
of Rule 65(B) of the Rules has been met;

FINDING that, although a general fear of intimidation
and threatening of witnesses cannot in itself constitute
a ground for denying provisional release, the volatile
situation in Kosovo makes the possibility that such
incidents might occur so vivid that it calls for
specific caution when deciding on provisional release
;

FINDING that, although it has not been verified
that the Accused threatened or exercised pressure
on victims or potential witnesses, and even if such
an incident did occur prior to the date when the
indictment against the Accused was confirmed, these
allegations by the Prosecution are very serious and
the Trial Chamber cannot completely disregard them
when it is now called upon to exercise its discretion
on whether to grant provisional release;

FINDING that, viewing these arguments in context
and balancing them against each other, and in the
absence of any other significant factor indicating
that he will not pose a danger to any victim, witness
or other person, if released, the Accused has not
discharged his burden of proof to satisfy the Trial
Chamber that the second requirement of Rule 65(B)
of the Rules has been met;

CONCLUDING that in the instant case, the requirements
of Rule 65(B) of the Rules are not satisfied, and
that therefore, the Accused should not be granted
provisional release;

PURSUANT TO Rules 54, 65 and 126bis of
the Rules

GRANTS leave to the Defence to file a reply,
accepts the Reply as filed, and